Human Rights, Trans Rights and International Best Practise: a comment.

This is a rather long and dry comment piece on the question of ‘international best practise’ in the field of gender identity recognition, written because I have a few things to say about the claims and opacity made by lobbyists with whom I disagree. I also want to take an opportunity to explain — as I have been asked to by several people who otherwise seem to think I’m a fairly reasonable chap — why I believe that best practise in gender recognition includes an administrative system that is based on self-identity. More of that later.

My simple starting point — for those who understandably can’t be arsed to read this — is that the UK gender lobbyists, in claiming a monopoly on ‘international best practise’ are behaving with no more objective honesty than do the propaganda merchants of the White House or the State Department. My supplementary point is that they are wrong: best practise, as has been agreed under the international frameworks of governance and law, is not what they say it is.

There, that’s it. Such bold claims about the gender lobbyists do require a bit of explanation, though, so for anyone who is interested in why I reached these conclusions, consider these three points, which I will then elaborate.

First, if you are going to accept my thesis that best practise is based in upholding human rights, it allows several forms of medical gatekeeping. This is not merely my opinion, it is the unanimous determination of the European Court of Human Rights.

Second, when lobbyists use this term — ‘best practise’ — they are, more often than not, referencing the Yogyakarta Principles, either as conceived or as amended, and a number of recent national laws which have been based on these principles.

https://yogyakartaprinciples.org/

Much more needs to written about how these principles came about, and about how they acquired their influence but that’s probably best left for another day. For today, let’s just say it was inside a metaphorically smoke filled room, in Indonesia, over a few days, with a comparatively few like-minded people meeting with each other behind closed doors.

That’s not to say it was a secret cabal of evil conspiracists. It wasn’t but it was not a democratic, inclusive or accountable process, either.

I’ve done my fair bit of developing the framework of international law and governance. Six years on the UK delegation to the EU Council of Ministers. Three years as Chair of a UN working group. I’ve been entrusted by their governments to ‘hold the flag’ (i.e. monitor developments and speak for as required) the people of Iceland, Ireland, Germany, Denmark, Sweden, Estonia, Poland and — to the best of my knowledge the only British official ever so entrusted — France, a circumstance which thrilled me even more than the UK government putting me, a Scot serving Scottish Ministers, in the President’s chair of the EU Council of Ministers for half an hour.

Let’s just say I know what I’m talking about and my peers knew it, too.

The area of best practise and international law I am most familiar with is the UN Convention on the Law of the Sea, with all it’s supplementary protocols and agreements, and its parallels in the EU Common Maritime and Fisheries policies, the Indian Ocean Regional Management Organisation, the Antarctic Treaty and the Arctic Council, the various case law of ITLOS, the International Tribunal nd the International Seabed Authority, the — let’s call it an ‘issue’ — of marine boundary demarcations between Scotland and England in the North Sea and the Code of Conduct and multiple supplementary technical guidance papers issued by FAO in Rome.

That’s a brief summary but it took more than 40 years to develop the whole body of international best practise in and around the law of the sea, and there were scores of long, technical international conferences and dozens of high level summits along the way. I was still working on some unpolished bits of it when I left the Scottish Government in 2014.

All I’m saying here is that international best practise takes a lot of work to develop and it isn’t done in a week in a smoke filled room to which no-one else was invited.

Anyway, the principles which emerged from the Yogyakarta process have no standing in international law. They do have influence in domestic law, as a commonly agreed reference point, and they have been presented at the UN. A large number of States have adopted them, although none so far — AFAIK — have incorporated them or anything like them directly into their domestic laws.

And — to reiterate — they are not agreed and have no standing.

The third of my three points is that, when I worked in the former Soviet States for most of a decade after the dissolution of Russia’s communist empire, we also used this phrase — international best practise — a lot. We used it to mean, especially, a particular social and economic model, viz a form of mixed market democracy. By ‘we’ here, I mean my former paymasters, the framework architects of post Soviet transition in the Kremlin, the IMF, the World Bank, the EBRD, the UN agencies, the EU programmes and all the various ‘soft power’ overseas aid projects of Europe, Japan, Canada and, of course, the USA. In other words, we used the phrase to underscore a particular and specific political project; to give it an air of objectivity and an elevated status, one which — in essence — sought to embed a permanent, American-led allied hegemony of Western ideas and economic pre-eminence in what Francis Fukiyama arrogantly called ‘The End of History’.

In fact, as it turned out, ‘the end of history’ was illusory, as it always had been. As the far more successful model of economic transition adopted by China clearly shows (and was showing even back then), the ‘short, sharp shock’ engineered on Russia and the former Soviet States by IMF chief economic advisor to the Kremlin, Anders Aslund, and others set the economy of Russia back decades, created the cadre of Russian oligarchs and spawned Putin’s illiberal dictatorship, among others even worse.

Meanwhile, as my former colleague Seamus Milne will happily explain at some length, the half-hearted attempts to build civic societies under (or constrained by) the military power of NATO and ANZUS led, arguably quite directly, to suppression in Chechenya, puppeteering in Syria and the annexation of Crimea.

‘International Best Practise’ it most certainly was not.

I’m reminded of those days by the current posturing claims of gender lobbyists. The Yogyakarta principles — which they will tell you stand for international best practise and hope that you don’t know any better — were developed to further a claim for the rights of transgender people.

They were not developed to consider the needs of anyone else. That is not a criticism of them in itself but it does takes away very substantially from the assertion that they represent best practise, domestic or international, in any way. Best practise, at least in my book and surely in any democratic society, does not promote the rights of minorities without a full consideration of the impact of those rights of the rest of the population.

I share a belief with Jeremy Corbyn that all such considerations are always best viewed through the lens of human rights. It should not be controversial to state that international best practise for transgender people must be supportable by the agreed international framework of human rights. After all, trans rights are human rights, as we are told so often, a claim to which no-one I have ever met disagrees.

In Europe the framework of human rights is particularly susceptible to a firm upholding of trans rights, which goes someway to explaining why this is probably the best region in the world to be trans, notwithstanding our shortcomings. Article 8 of the European Convention has developed the right to privacy differently in European jurisdictions.

The illustrative link below provides a summary of the rights to privacy in US law and under the US Constitution and Bill of Rights.

https://www.livescience.com/37398-right-to-privacy.html

In a roughly hewn summary, the right to privacy under the US Constitution, Bill of Rights and Federal Law amounts to a right to be left alone by the State, and it is differently expressed in the different States.

In contrast, under European Human Rights law the right to respect for a private life is a much broader concept than it is in the States, or in other jurisdictions of the Anglosphere. In Europe, it is a concept which may “embrace multiple aspects of the person’s physical and social identity” (S. and Marper v. the United Kingdom [GC], § 66).

In Europe, psychological integrity is protected, as much as is physical integrity. The formidable Lady Hale, former and first female President of the UK Supreme Court, summarised the impact of this difference on UK law in the introduction to her judgment in the case of R (on the application of C) (Appellant) v Secretary of State for Work and Pensions (Respondent): UKSC 72 on appeal from: [2016] EWCA Civ 47, a case concerning the official record keeping of the DWP and the rights of a transgender person. The full judgment is here:

https://www.supremecourt.uk/cases/docs/uksc-2016-0062-judgment.pdf

The part I want to draw attention to is the framing introduction, in which Lady Hale said, about being transgender, or transsexual, “it does not take much imagination to understand that this is a deeply personal and private matter”.

You need not agree with all of Lady Hale’s words here but it’s a bold Twitterer that takes aim at her legal judgments (which, in this case, ended with upholding the practises at the DWP). Here, she is referencing the direct and framing relevance to trans people of the self-actualisation, personal autonomy protections that are extended to all people under the right to respect privacy in UK law under ECHR.

That is key difference from the situations in which those Americans and Canadians with whom we often argue on social media find themselves, and it may be summarised as:

The right to develop one’s own personality.

As an aside, to all my gender critical friends, I’d ask you to take note and reflect. When you try to argue that ‘gender identity’ is nothing more than ‘personality’ you may or may not be right but, either way, it’s irrelevant. The development of our own personality is protected, and you don’t need me to explain why it matters that our very sense of self is protected, why our personal autonomy matters, why our human rights include the right to become who we are, to reach the fullest of our own potential, without limit.

Again, there’s a whole body of literature worth your considering on the divergence of European and American interpretations of the right to privacy, and some very good academic and other explanatory essays.

Here, in a holding place, is a relevant introduction and guide to the much broader scope of ECHR under the European Convention:

So we already have, in Europe, a body of law which protects the human right of respect for our privacy, and the case law clarifies that it covers personality or self identification, and it definitely covers gender identity.

It is the most comprehensive international legal framework available for protecting the rights of all humans, with — in comparison to non-European jurisdictions, at least — a particularly thorough set of protections for trans people and the importance of our respect for their — or anyone’s — gender or other personal identity.

Indeed, most of the recent developments and progress around gender recognition have come from cases brought before the European courts, in which Convention States have been found wanting in their upholding the rights of trans people, including all the instances of States adopting what the lobbyists describe as best international practise. Malta, Ireland and so on.

There’s a whole load more of such cases coming, too because the Court has now unequivocally prohibited any requirement for surgical intervention as a qualifying condition for upholding these rights, and there are a number of Convention States which still hold to the requirement.

Which brings me to the case of AP, Garcon and Nicot v France, judgement on which was delivered on 6 April 2017, which must be considered one of the fullest and most recent statements of international best practise in the field of gender recognition processes reflecting a person’s human right to have their privacy, or their identity, protected in law and in practise.

Here’s a link to the full the full judgment (you may need to copy and paste into your browser):

http://hudoc.echr.coe.int/eng?i=001–172913

This is the case in which the Court ruled that the condition of compulsory sterilising surgery or treatment for legal gender recognition violated Article 8 of the Convention, and that States upholding human rights had no margin of appreciation — no flexibility, no wriggle room, no good reason to depart — in the matter.

A lot of us cheered that judgment, including me. To make things like getting your passport or driving license changed — things where the state would respect your identity without any risk of harm whatsoever befalling anyone ese — to make those measures conditional on undergoing a major and dangerous surgery that you didn’t want to have was a gross invasion of a person’s privacy as well as an assault on bodily autonomy. In the United Kingdom, we removed this condition following an earlier ruling which led in part to the undoubtedly flawed Gender Recognition Act in the first place.

There is a different discussion to be had about access to women’s spaces. The interpersonal relationship is not the same thing as the citizen-state relationship. Many — not all — of the women I know will say, “chop it off, behave yourself and come on in”. And the fact that transsexuals have been using women’s facilities for decades suggests that these women, many of whom are alarmed by current proposals, are — at least — a substantial minority, if not a majority.

But the court did not only rule on sterilising surgical interventions in that judgment. It had before it all the instances of ‘best practise’ that our social media antagonists routinely throw around: the Yogyakarta Principles, the updated Yogyakarta Principles, the declaration of the UN Human Rights Commissioner, the resolution of the Council of Europe. All of them. Amnesty, Transgender Europe and ILGA all intervened in the case. They and their very experienced lawyers set out all the familiar arguments.

The court was considering — in addition to surgical intervention and other sterilising treatments — France’s requirements for medical examination and expert medical assessment as a condition of gender recognition. And, guess what? It ruled unanimously that both were permitted. Neither requirement, for all the reasons set out in the lengthy judgment I have linked to, breached a trans person’s human rights.

Abolishing the prerequisite for a diagnosis of gender dysphoria is not ‘international best practise’. It is a preferred stance of some lobbyists. And those lobbyists know this, and are lying to you.

I’m looking at you Liberty, Stonewall, Amnesty.

Everyone has the right to have their identity respected, including trans people. That’s why I believe the starting point for an administrative recognition system has to be self-identity. Anything else is a denial to trans people of a right which the rest of us, under Article 8, all enjoy.

But what comes with that right, what conditions can be attached, what limits may be placed. These are up for discussion. It’s not transphobic to say so, and it’s certainly not a breach of human rights. That has been held, unanimously.